Friday, May 16, 2014

Retirement Homes Regulatory Authority?

The Retirement Homes Act 2010 established the Retirement Homes Regulatory Authority (RHRA) to “administer this Act and the regulations, including overseeing their enforcement, for the purpose of ensuring that retirement homes are operated in accordance with this Act and the regulations.” This Authority has a Board of Directors (as per section 12 of Part II of the Act) with its various stipulations and its Chair designated by the Minister responsible for Senior Affairs (section 14 of Part II of the Act).

Throughout Part II of the Retirement Homes Act 2010, intricate legal cobwebs weave the illusion that the RHRA is an authority that is not part of a government ministry. Yet throughout Part II of the Act it is clear that the Minister for Senior Affairs is tied at the hip to the RHRA, and not only as an interested on-looker. Part 18 speaks of the memorandum of understanding between the Minister and the Authority, section 26 states that the Authority
(a)”with the approval of the Minister, shall establish a code of ethics that includes rules respecting conflicts of interest, political activity and disclosure of wrongdoing.”

No matter what section of Part II of the Act one reads, the Authority is mentioned in conjunction with the Minister. Yet the Authority had been set up as a non-profit entity on its own. It is not a part of a ministry but at the same time answers to the Minister. No non-profit organisation does that. True a not-for-profit organisation would have a board of directors and a chair. Though at the RHRA that position is designated by the Minister. The RHRA's finances or income is basically split between two incoming sources.

Revenue for the RHRA comes from annual licence fees and application fees totalling in 2013 at $4,898,140 out of a total revenue of $7,789,963. The Government of Ontario provided a grant of $2,741,431 making that approximately one third of total revenue for the year 2013. In 2012 as the RHRA began its existence for real, rather than a note in legislation or a bright idea of government, its revenue was only a provincial grant of $3,807,773. As a side note one wonders who at the government decided on figures for grants with $431 and $773, would it not be simpler for the government accountants to make the grants with round numbers like $2,750,000? Maybe this proves that the workings of a government are never easy to explain.

In relation to the finances of the RHRA, the Act under section 21, Fees, loudly proclaims with subsection (5) that, “For greater certainty, the money that the Authority collects in administering this Act and the regulations is not public money as defined in the Financial Administration Act, and the Authority may use the money to carry out its objects.” So “for greater certainty” two thirds of its revenue is not public money, but one third is. It is taxpayer dollars and it is handed over to an Authority established by an Act of Legislation for the purpose of protecting and administering one of the most vulnerable sectors of our society, our seniors. Not only are seniors vulnerable to abuse, neglect and more, they are part of a very powerful political lobby which can influence a vote and support for the government or its opposition.

After reviewing the Retirement Homes Act 2010 and Part II of the Act, it is clear that the RHRA may claim a non-profit status but in the end it is an Authority that answers to the government for its existence and operations. A clearer and more decisive picture emerges with inspection in detail of the Memorandum of Understanding entered into by the Authority with the Minister.

Under section 6 of the MOU, Accountability Relationships, it states “the Minister is accountable to the Legislative Assembly for the fulfilment of the statutory mandate of the RHRA and for reporting to the Legislative Assembly on the affairs of the RHRA.” Further in section 7, Roles and Responsibilities of the Parties, subsection 1, “The Minister is responsible for the overseeing the performance of the RHRA with respect to its statutory mandate and reporting to the Legislative Assembly on its activities...” It may be a fair question to ask as to why it had been necessary to nail down the managerial ladder of responsibility relating to the RHRA.

The first point that needed clarity was the RHRA's not-for-profit designation. As a not-for-profit Authority the RHRA has the power to generate its own, or partially own income revenue from licensing and application fees. In all other areas such as a business operator's licence, driver's licences and more, that revenue is considered government revenue, not so with the set up of the RHRA. Not withstanding all the political and legal terminology of the Act, Part II or the MOU, the RHRA and the government cannot be separated.

Mario Sergio, Minister Responsible for Seniors Affairs was contacted by letter March 20th 2014 regarding a serious breach by the RHRA of its own Code of Ethics and the Criminal Code. Minister Mario Sergio did as is expected of any minister of government, he lied. This Minister Responsible for Seniors Affairs, and who is by position and authority referred to in the Act Part II and the MOU, ran for cover rather than do what he is paid to do.

Minister Sergio was provided with details of a breach of legislation relating to confidentiality and privacy of information. This breach was committed by an Intake Supervisor at the RHRA and further complicated by John Risk, General Counsel of the RHRA. General Counsel John Risk lied in his letters to a private individual, to a senior and then ensured that phone messages by the individual were intercepted by him rather than being answered. At the time copies of correspondence and other documents were provided to Minister Mario Sergio which confirmed everything that was stated regarding the situation.

Minister Sergio ignored his responsibility though that is not a surprise of a Liberal government minister. By the time Sergio's response was received another piece of the puzzle came forward. This time it was the most damaging of all. A letter dated April 4th 2014 and signed by Shirley Cordiner, Chair of Niagara Regional Housing, confirmed that the RHRA had instructed all emails and hard copies of a file be destroyed. This is a breach of the Criminal Code and the section on Fraudulent Concealment. So now it is clear as General Counsel for the RHRA, John Risk not only lied in his written communications, he had instructed another government agency to destroy documentation relating to an investigation.

An attempt was made to contact Mary Catherine Lindberg, Chair of RHRA April 11th 2014. General Counsel John Risk intercepted that phone message, so as no return call was made. Now John Risk, General Counsel for RHRA added stalking of a member of the public on top of his lies and fraudulent concealment. This necessitated a letter to be sent to the Chair of RHRA dated April 23rd 2014 providing full details and documentation.

No response came from Chair Lindberg, instead an email arrived dated April 28th 2014 from WeirFoulds LLP, Barristers & Solicitors. WeirFoulds LLP has quite a pedigree, as a law firm based and established in Toronto with a continuous partnership since 1870 made it the oldest law firm in Canada. Its partners have in their ranks a number of judges, in 1966 it prevailed in the Leitch Gold Mines vs. Texas Gulf dispute, the firm represented the T. Eaton Company in 1920 to develop what was then the largest department store in Canada, and in 2003 Derry Millar of WeirFoulds LLP was appointed lead counsel in the Ipperwash Inquiry. In addition to all of this WeirFoulds lawyers have authored or edited leading legal reference books such as Electronic Documents: Records Management. This is one John Risk, General Counsel for the RHRA should have read.

Lawyer M. Jill Dougherty with a Jordan Glick attached responded that they were in receipt of the April 23rd letter to Chair Lindberg of the RHRA. It may be quite fortuitous that the RHRA is listed as a not-for-profit Authority otherwise how could they afford such legal history and pedigree. A letter was sent to the attention of Ms. Dougherty after her initial email. Rather then respond in writing the attached Jordan Glick decided to use the telephone, and that is when it became quite clear that all the pedigree meant nothing. The attached Jordan Glick was only different to the fellow who hangs out his shingle in Smallville Anywhere because he needs to ride the elevator high enough to be impressed in Toronto's TD Bank Tower.

Jordan Glick's phone call was recorded, and as he was to be considered an 'enemy' that was a prudent step. Three points stood out of the phone conversation. One which Jordan Glick pushed more than once was the fact, according to Glick, that WeirFoulds LLP didn't know what was being expected of their client, the RHRA. Secondly, platitudes gushed out of Jordan Glick's mouth like syrup from a ruptured vein in a maple tree. Thirdly, Jordan Glick dropped two points that were relevant. He brought up the issue of whistle blowing protection, and that the RHRA were supposedly investigating the fact that the provisions and laws surrounding whistle blowing protection were breached. He did not further allude to what or who was conducting what investigation. Ending the phone conversation was as easy as attempting to leave a room filled with insurance salesmen, the door simply had to be slammed loudly.

After the memorable, and recorded, phone conversation with the attached Jordan Glick an email was sent to him. The reply, as always from a lawyer, was interesting. Back on May 5th, 2014 Jordan Glick said in an email, “My concern about responding in writing is that it is not clear to me what type of response you desire from the RHRA and therefore it is unlikely that we will be able to reach a workable solution for both parties without further information.” Wow, lawyers do fear putting anything in writing. Some four days later Glick sent another email, dated May 9th 2014. Here Jordan Glick mentions Section 115 of the Act and Section 115(7), all relating to “whistle blowing protection.” He then states, “You have brought to the attention of the RHRA a concern that the Paderewski Society Home may have violated provisions of the Act and the RHRA is responding to this concern accordingly.” A lawyer's answer that is not really an answer.

Glick further states that the RHRA disagrees with the facts of the situation at present. Now that is a surprise, even when settlement is reached no one at RHRA or at WeirFoulds admits to anything, it is simply a settlement to make it all go away, preferably without public attention. Then comes the real chuckle, Glick says “As you have declined to indicate how amicable resolution of your concerns may be reached, it appears that we are not able to be of further assistance at this time.”

Jordan Glick is attached to M. Jill Dougherty, who is employed by WeirFoulds LLP, who have been retained by the RHRA as their client. The RHRA, a pseudo not-for-profit Authority
established by an act of legislation and responsible for reporting everything to the government through the Minister responsible for Senior Affairs, and who have breached legislation and law, now need to find a back door. Jordan Glick amusingly says we “are not able to be of further assistance.” Either the attached Jordan Glick swallowed funny pills before sending these words, or he really thinks he is a comedian.

It is near impossible to ask a question of a lawyer and then get a straight answer regardless of whether the office is a highrise in a big city or a walk-in from the street. Sill Jordan Glick had eluded to a very interesting section of the Act, one not spoken of before. The Plain Language Guide, An Overview of the Retirement Homes Act 2010, published by the RHRA sets out on page 14 “Section 75 of the Act requires a person to make a report to the Registrar where the person suspects that a resident has suffered harm or is at risk of harm because of certain events. These events include abuse, neglect, improper care or treatment and unlawful conduct. A person must also make a report where they suspect misuse of a residents money. Residents are not required to report, but may do so.” It concludes with this statement, “The Act has strong protections for those reporting or disclosing matters to the Registrar or an RHRA inspector. These protections are set out in section 115 and 116 of the Act. In general, a person must not retaliate against a person who makes a report or discloses information to the RHRA.”

The Fact Sheet published by the RHRA relating to Whistle Blowing Protection makes it very clear stating, “Contravention of the whistle blowing protection is an offence under the Act. If convicted, a person may be subject to fines or imprisonment, or both.” In addition to the Plain Language Guide and Fact Sheet published by the RHRA, the Retirement Homes Act makes it clear under Section 115, that anyone making a report to the Registrar is protected under the Act.

So the attached Jordan Glick played at the usual empty bravado that lawyers do and said the RHRA disagrees with the facts. As a mouthpiece for his or his bosses' clients what else is to be expected, still fact is fact, and remains so. The RHRA through Tracy Fairfield, Intake Supervisor and John Risk, General Counsel breached the legislation that gave life to the RHRA. John Risk went much further to hide the truth, he not only lied in written communications but had provided instructions for the deletion of files.

An opportunity was provided to the RHRA to settle an issue of breach of legislation and law by officers of the Authority. As a response, the RHRA brought in an impressive law firm with an equally impressive pedigree. WeirFoulds LLP through the attached Jordan Glick decided that they were of no “further assistance at this time” for their clients, the RHRA. Since Jordan Glick eluded to the whole issue of Section 115 of the Act, he is also fully aware, and for that matter so is his client the RHRA, of the fact that General Counsel John Risk knew of the breaches committed against Section 115. Yet John Risk requested the fraudulent concealment of documentation regardless.

Maybe in the end the heights of the Toronto Dominion Tower in downtown big city Toronto are not as impressive after all.

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